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Published online by Cambridge University Press: 13 July 2017
On September 27, 2016, the Trial Chamber (Chamber) of the International Criminal Court (ICC or tribunal) rendered its judgment in Prosecutor v. Ahmad Al Faqi Al Mahdi, wherein the defendant was convicted of the war crime of intentionally directing attacks on protected cultural objects. It is the ICC's first such conviction and the first time that an accused has entered a guilty plea at the tribunal pursuant to Article 65 of the Rome Statute (Statute). Al Mahdi pled guilty to co-perpetrating attacks on protected objects pursuant to Article 8(2)(e)(iv) of the Statute for his role in the attack on, and destruction of, ten mosques and mausoleums in Timbuktu. The Trial Chamber sentenced him to nine years in prison.
1 Prosecutor v. Al Mahdi, ICC-01/12-01/15, Judgment and Sentence (Sept. 27, 2016), at https://www.icc-cpi.int/CourtRecords/CR2016_07244.PDF [hereinafter Judgment].
2 Rome Statute of the International Criminal Court, July 17, 1998, 2187 UNTS 3, Art. 8(2)(e)(iv) (this article criminalizes “[i]ntentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives”).
3 The ten sites were: the Sidi Mahamoud Ben Omar Mohamed Aquit Mausoleum; the Sheikh Mohamed Mahmoud Al Arawani Mausoleum; the Sheikh Sidi El Mokhtar Ben Sidi Mouhammad Al Kabir Al Kounti Mausoleum (in the Sidi El Mokhtar Cemetery); the Alpha Moya Mausoleum (in the Alpha Moya Cemetery); the Sheikh Mouhamad El Mikki Mausoleum; the Sheikh Abdoul Kassim Attouaty Mausoleum; the Sheikh Ahmed Ben Amar Arragadi Mausoleum; the door of the Sidi Yahia Mosque which had not been opened in five hundred years (according to legend); and two mausoleums adjoining the Djingareyber Mosque—the Ahmed Fulane Mausoleum, and the Bahaber Babadié Mausoleum (para. 38).
4 Summary of the Judgment and Sentence in the Case of The Prosecutor v. Ahmad Al Faqi Al Mahdi, at https://www.icc-cpi.int/itemsDocuments/160926Al-MahdiSummary.pdf; see also ICC, Press Release, Situation in Mali: Ahmad Al Faqi Al Mahdi Surrendered to the ICC on Charges of War Crimes Regarding the Destruction of Historical and Religious Monuments in Timbuktu (Sept. 26, 2015).
5 Judgment, para. 54. The Chamber noted that other accessorial forms of liability pursuant to Article 25(3)(b)–(d)—including soliciting and inducing, aiding and abetting, and contributing in any other way—had been confirmed and that there is no hierarchy between the various modes of liability set forth in Article 25(3)(a); however, an accused may only be convicted of one form of liability for each incident of criminal conduct. Id., para. 60.
6 Prosecutor v. Al Mahdi, ICC-01/12-01/15, Annex 1: Agreement Regarding Admission of Guilt (public redacted) (Feb. 2016), at https://www.icc-cpi.int/RelatedRecords/CR2016_05666.PDF [hereinafter Agreement].
7 See Frulli, Micaela, The Criminalization of Offences Against Cultural Heritage in Times of Armed Conflict: The Quest for Consistency, 22 Eur. J. Int'l Law 203 (2011)CrossRefGoogle Scholar.
8 See, e.g., Prosecutor v. Strugar, Case No. IT-01-42, Judgment, paras. 21, 327, 329 (Int'l Crim. Trib. for the Former Yugoslavia Jan. 31, 2005); Prosecutor v. Jokić, Case No. IT-01-42/1, Judgment, paras. 23, 55, 66 (Int'l Crim. Trib. for the Former Yugoslavia Mar. 18, 2004).
9 Prosecutor v. Prlić, Case No. IT-04-74-T, Judgment, vol. 2, para. 1283 and n. 3215 (Int'l Crim. Trib. for the Former Yugoslavia May 29 2013).
10 Prosecutor v. Al Mahdi, ICC-01/12-01/15, Decision on the Confirmation of Charges (public redacted), para. 41 (Mar. 24, 2016), at https://www.icc-cpi.int/CourtRecords/CR2016_02424.PDF.
11 See generally Agreement, supra note 6 (providing details on the historic and religious significance of the mausoleums and monuments in question).
12 Quoting Al Mahdi as stating that: “Over time, a myth took hold, claiming that the Day of Resurrection would begin if the door were opened. We fear that these myths will invade the beliefs of people and the ignorant who, because of their ignorance and their distance from religion, will think that this is the truth. So we decided to open it” (para. 38(viii)).
